Transcript of Summary Judgement Hearing

Case 3:05-cv-00432-JSW Document 202-2 Filed 05/19/2008 Page 1 of 57
120106GoldenDawn
Volume I
Pages 1 - 65
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE JEFFREY S. WHITE, JUDGE
THE HERMETIC ORDER OF THE )

GOLDEN DAWN, )
)
Plaintiff, )
)
v. ) NO. C-05-432 JSW
)
DAVID GRIFFIN, )
)
Defendant. )
______________________________)
San Francisco, California
Friday, December 1, 2006
TRANSCRIPT OF PROCEEDINGS
APPEARANCES:
For Plaintiff: Law Offices of Harris Zimmerman
1330 Broadway, Suite 710
Oakland, California 94612
BY: MICHAEL JAMES CRONEN, ESQ.
For Defendant: Law Offices of Jorge Hevia

1440 Brickell Bay Drive, Suite 309
Miami, Florida 33131
BY: JORGE HEVIA, ESQ.
Reported By: BELLE BALL, CSR, RMR, CRR

Official Reporter
1 FRIDAY, DECEMBER 1, 2006

2 9:38 A.M.
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3 THE CLERK: Calling Case C-05-00432, the Hermetic
4 Order of the Golden Dawn versus David Griffin. Counsel, please
5 step forward and state your appearances.
6 MR. CRONEN: Good morning, Your Honor, Mike Cronen for
7 Plaintiffs, Hermetic Order of the Golden Dawn, Inc. And Mr. Sam
8 Webster is our client representative.
9 THE COURT: Good morning.
10 MR. HEVIA: Good morning, Your Honor. Jorge Hevia
11 representing Mr. Griffin.
12 THE COURT: And Mr. Griffin is in court?
13 MR. HEVIA: Yes.

14 THE COURT: All right, thank you very much. The
15 client's representative may be seated.
16 Okay. We are here on the motions for summary judgment
17 and related motions. And I want to know whether the parties
18 received the Court's notice of tentative ruling, and the
19 questions.
20 MR. CRONEN: Yes, we have, Your Honor.
21 MR. HEVIA: Yes, Your Honor.
22 THE COURT: All right. Before --
23 MR. HEVIA: Your Honor, may I ask if the Court got our
24 statement of recent cases?
25 THE COURT: I did.
3
1 MR. HEVIA: Thank you, sir.

2 THE COURT: We did get it. Thank you.
3 A couple of preliminary matters that I want to get
4 into before we get into the questions that were submitted. The
5 first one has to do with the requirement of filing chambers
6 copies.
7 I want to say to Counsel, what people do on their own

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8 personal time is no business of the Court's, but I want to say
9 that there is some sensitivity on the part of the Court and
10 staff to secondhand smoke. And I want to say to Defense Counsel
11 that the filings that you have sent to chambers have had an
12 aroma of cigarette smoke, and we find it an aroma difficult to

13 deal with.
14 So, again, I'm not going to, obviously, impinge upon
15 the rights that anybody has -- either you or anybody in your
16 office -- to smoke, but if you -- when you do submit your
17 papers, you need to make sure that they are free of that. If
18 it's impossible to do that, then you should let the Court know,
19 and I will suspend the obligation of filing chambers copies.
20 Is that understood?
21 MR. HEVIA: Yes, sir. I apologize, Your Honor.
22 THE COURT: All right. Okay. The second order of

23 business is the following. The Court has -- as the parties will
24 remember, early in this case, the Court admonished the parties,
25 and particularly in an order granting the motion to vacate entry
4
1 of default and denying as moot the motion for entry of default

2 that was filed earlier, on September 20th, 2005.
3 The Court said in Footnote No. 1, quote, "The parties
4 are hereby admonished that at all court appearances and at all
5 future pleadings, they are to address the legal issues raised,
6 and refrain from including attacks on one another and their

7 Counsel that are peppered throughout the motions currently
8 pending before this Court," unquote.
9 The Court noticed in the current filings before the
10 Court, for today's papers, that that -- that admonition was not
11 honored, that there are ad hominem attacks on Counsel, on the
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12 parties by Counsel, by the parties on each other. And by that I
13 mean name calling, accusing one side or the other of committing
14 crimes in this court, before this Court, or lying to this Court,
15 or otherwise characterizing the arguments or the people involved
16 in this case, either attorneys or clients.
17 The problem that this causes to the Court is that
18 dealing with that kind of behavior is time consuming, it clouds
19 the message that you and your clients are trying to bring to
20 this Court, and generally speaking, it disadvantages the clients
21 of this case and the resources of the Court.
22 In addition, I understand from the nature of this case

23 that there's a lot of passionate feelings and personal feelings
24 about the case and possibly the parties that the parties have,
25 the respective parties have, and that there's probably -- there
5
1 is a desire by clients to say things about their opponent and

2 their lawyers.
3 But the lawyers are officers of the Court, and it's
4 their job, it's their duty to educate their clients that if they
5 engage in such attacks, it demeans their position. And it also

6 clouds the message that they are trying to give to the Court,
7 because the Court has to try to ferret out those statements.
8 And just as a matter of -- from a pedagogical
9 perspective, I'll tell you that it's much more effective that
10 you let the Court draw its own conclusions about the credibility
11 of the opposing party, the credibility and character of the
12 opposing party based upon objective arguments and statements of
13 facts, than drawing those conclusions yourself and bringing
14 those forth to the Court, because it only cries out for
15 responses in kind. And so you're not -- it does not help the
16 effective and zealous advocacy on behalf of your clients to do

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17 so.
18 So, here is what I'm going to do this time. I was
19 thinking about what should I do, to make, if you will, the
20 punishment fit the crime here. And what I've decided to do in
21 this instance is the following. By one week from today,

22 December 8th -- I'm going to hear your arguments, I want to get
23 responses to the questions, but in order to make the point that
24 I want to make, and to purge this Court of the enmity and the
25 vitriol that's been heaped upon the Court, by one week from
6
1 today I want each side to file a new version of their respective

2 briefs and declarations.
3 And I'm ordering that in those new versions, any
4 characterizations of the opponents, the opponent's arguments,

5 the opponent's Counsel, or positions, or any other unflattering
6 references to the opponent or their arguments, are to be edited
7 out. And that would include any adjectives or adverbs, if you
8 are looking for parts of speech, and possibly nouns as well.
9 And I want you to file the edited copy, red-lined to
10 show where these inappropriate statements were removed. And I
11 want the red-lined version to be filed, so the Court will know
12 where you edited out the inappropriate statements. I'm ordering
13 that the client representatives participate in this process.
14 I want a declaration from both sides that their
15 respective clients participated in the process and approved the

16 briefs. And I'm also ordering that the time incurred in doing
17 this process not be -- that the legal fees and expenses
18 associated with it not be charged to the clients.
19 I'm ordering that this exercise be handled by Counsel
20 currently in court, personally, and not delegated to an
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21 associate or paralegal. And then, that should be done by next
22 Friday.
23 If -- I am not going to give you any help in terms of
24 telling you exactly what I'm thinking about, but just to give
25 you an egregious example, one side accuses the other side of
7
1 committing felonies before this Court. That is pretty

2 recognizable as something that is inappropriate for this Court,
3 and is an affront to the dignity of this Court and the decorum
4 of this Court.
5 If the -- if the editing is not adequate in the
6 Court's determination, then the Court will decide what the
7 appropriate sanction is, including striking the offending
8 document. And then in the future -- and this is going to go out
9 both to the lawyers and to the clients -- any future violation
10 of this rule that I have previously set down for you, will
11 result in the Court issuing sanctions to its full authority,
12 which could include anything up to and including dismissal of
13 the case, issue preclusion, monetary sanctions, or other
14 sanctions of like kind.

15 So, I don't like doing this because we're all
16 professionals here, acting professionally, and trying to
17 vindicate the interests of your respective clients. But I felt
18 it appropriate to tone this down now. And I wanted to do this
19 before we get into the oral hearing, because I don't want that
20 kind of behavior to occur here.
21 I'm not ordering group hugs, I'm not ordering people
22 feel one way or the other toward the parties. I'm only ordering
23 that what is submitted to this Court be professional and free of
24 the ad hominem attacks and the acrimony that I've seen. Is that
25 understandable, Counsel?
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8
1 MR. CRONEN: Your Honor, if I may make one comment,

2 there's another interest here. I have never been accused of
3 suborning perjury --
4 THE COURT: I don't want to hear that. I don't want
5 to hear that, because --
6 MR. CRONEN: I don't want to hear it either, you know.
7 It's very offensive.
8 THE COURT: What I'm saying to you is the remedy from
9 your perspective is this, to the extent -- and again, I have
10 avoided pointing fingers. But the level of work required by one
11 side or the other will be -- and the nature of the brief that is
12 submitted pursuant to this order, subject to a possible motion
13 to strike, will be the ultimate remedy.

14 And I think one interesting piece of evidence of when
15 you know that you are offending the decorum of this Court is
16 when it requires the other side to file a self-testimonial to
17 indicate why they wouldn't do something like this. We don't
18 need that. That is not appropriate, it takes up space, it takes
19 up resources.
20 So I don't need to hear -- again, I've avoided
21 pointing anyone out at this point. You will see when you go
22 through your papers with your client whether there is any
23 criticism to be heaped, and to what extent it is to be heaped,
24 and my -- my view of this point is to address both parties.

25 And by doing so, it's without derogation of the Court
9
1 knowing -- I've read these papers several times, and it is

2 without derogation to the Court knowing exactly what is going on
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3 here. But there is no point at this point in making findings of
4 any blame, because I want to maintain my impartiality.
5 So if I don't address the specifics, Counsel, you
6 don't need to address the specifics.
7 MR. CRONEN: Your Honor, I understand. I just wanted
8 to make my point, because it's my reputation, too, that's at
9 stake.
10 THE COURT: I understand that, and that is why I'm
11 doing what I'm doing.
12 MR. CRONEN: Okay.
13 THE COURT: To get that out of the Record.

14 Do you understand?
16 THE COURT: All right, very well. Now, one other --
17 and this is sort of a minor request, but when you do your
18 briefs -- and this particularly applies to the Defendant,
19 Mr. Griffin -- that when you file a brief, please refer to
20 Mr. Griffin by his name, and not in what capacity he is in the
21 case.
22 In your briefs, you use his name, sometimes you call
23 him "Defendant," sometimes you call him "Defendant and

24 Counter-Claimant," and it was necessary for the Court to
25 actually go through and do its own red-lining so it was clear
10
1 who we were referring to.

2 So in the future, and when you file this new amended
3 brief, please refer to Mister -- I know his position in the
4 case, but it makes it very difficult to deal with it when you
5 use that name. That is by rule in the Ninth Circuit. It's not
6 a rule in the District Court, but I'm making it a rule in this
7 case for both sides.

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8 Just use the name of your client. It makes it much
9 easier to read your briefs. And we save a lot of space that way
10 as well.
11 MR. CRONEN: "Plaintiff" and "Defendant" acceptable,
12 too?
13 THE COURT: I would rather you use the -- you use the
14 "HOGDI."
16 THE COURT: That's perfect. "David Griffin" is
17 perfect, and that way, I'll know who's what. But if you get
18 into "Defendant" --
19 MR. CRONEN: And "Counter-Claimant" --
20 THE COURT: -- then you get Defendant position or his
21 Counter-Claimant position, and it is not necessary or helpful at
22 that point.
23 All right. I want to go to the questions. And for
24 those of you who have not been in this court before,
25 presumptively, in this district, you don't get the right to
11
1 argue. There's no right to argue on law and motion in a civil

2 case. And, the law and motion is for the Court, and not the
3 parties.
4 So, when I ask the questions that I ask, it's because
5 I need answers. I have not made up my mind, and I need real
6 answers to real questions. So, please don't use this as an

7 opportunity for rearguing your papers, which I'm very familiar
8 with, unless it is responsive.
9 Some of the questions are factual, some of them may be
10 actually contained throughout your briefs, but I'm asking for
11 your -- your sort of last and best answer on a point where the
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12 Court thinks that it needs information -- it needs your
13 positions in order to -- in order to properly reflect the
14 parties' positions. So, I want to get, as much as possible,
15 brief, objective, responsive answers.
16 If your answer is such to the question that you
17 think, "Gee, this is adverse to my side," I am giving you the
18 opportunity at the end of each section to add anything you want,
19 if you feel you need to. But on these questions there's no
20 hidden agenda. Don't tell me that I've asked the wrong
21 question, or the question is irrelevant, or beside the point.
22 It may very well be, but these are the questions that the Court
23 had in reviewing your papers.
24 So I'm asking you -- there's a lot of questions, more
25 than I usually ask. And I really just need answers, and let the
12
1 chips fall where they may. Because they are not trick
2 questions, it's just what I need in order to flesh out my
3 thinking.
4 So, and, I also should tell you that the rules here
5 are that you don't just get to answer what was on the homework
6 assignment; there are pop quiz questions as well.
7 MR. CRONEN: Okay, sure.
8 THE COURT: So be prepared for those. Because as I
9 continue to prepare, the Court continues to prepare, additional
10 questions arise that didn't get onto the take-home, if you will.
11 So, with that in mind, let's start with Question
12 No. 1.a. and in fact, there, the preliminary question, I've
13 given you sort of a sense of what leads up to the question.
14 And I will start with the Defendant. So, Counsel?
15 MR. HEVIA: Yes, Your Honor. Defendant David John
16 Griffin believes that upon execution of the agreement, he

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17 acquired a vested property interest in the U.S. mark, and that
18 opposing party never has had full control of use and ownership
19 of the H.O.G.D. mark.
20 In the first recital of the agreement, both parties
21 recognized each other as lineal descendants of the original

22 order, with the right to use --
23 THE COURT: Slow down when you read. We all tend to
24 speed up, and the Court Reporter has a great deal of difficulty,
25 so you should actually slow down when you read. Thank you.
13
1 MR. HEVIA: The first recital of the agreement, both

2 parties recognized each other equally as lineal descendants of
3 the original order, founded in London in 1988. And the second
4 recital, the parties recognized that both parties were concerned

5 with wrongful usage and infringement by third parties.
6 The third recital recognizes that both parties have
7 similar names and marks, i.e., one party, H.O.G.D., the other
8 party H.O.G.D., Inc. The E.U. open mark is "Hermetic Order of
9 the Golden Dawn"; the U.S. mark is "The Hermetic Order of the
10 Golden Dawn."
11 The third recital goes on to say that but for the
12 agreement, there would be confusion in the public, because you
13 have two organizations involved in substantially the same lines
14 of business, but wishing to develop their own distinct identity.
15 And that without an agreement, there would be confusion in the

16 marketplace.
17 The third recital states that each party wishes to
18 develop its own reputation, and repeats the confusion issue.
19 Paragraph 1 reads in its relevant part (As read), "Each party
20 grants to the other the unconditional perpetual and irrevocable
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21 right to usage in the United States of America and worldwide of
22 the granting party's respective name -- names, when used in
23 conjunction with the trademark or service mark as defined by the
24 Lanham Act Citation. Paragraph 2, Covenants: Neither party
25 shall interfere with or otherwise directly or indirectly
14
1 challenge the trademark, name mark, registration or usage by the

2 other party of that other party's aforesaid named names."
3 Paragraph 2 further states, "Both parties agree that
4 this agreement or a memorandum evidencing its details may be

5 reported in the United States Patent and Trademark Office."
6 THE COURT: All right. What about legal authority?
7 You have given me the --
8 MR. HEVIA: Yes. The -- the legal authority, I would
9 like to refer to the case that I submitted in the Statement of
10 Recent Cases. If the Court would just let me --
11 THE COURT: Sure.
12 MR. HEVIA: Here we go. I brought several copies. If
13 anyone would want --
14 THE COURT: No, the Court has them. You have got
15 them, right?
16 MR. CRONEN: I'm sorry, which case are we referring
17 to?
18 THE COURT: Yeah, which case?
19 MR. HEVIA: Iskenderian v. Iskenderian, filed
20 November 17, 2006, State of California, Appellate Decision, that
21 they have jurisdiction in trademark matters also. It is not the
22 precedent, but we believe that it is very persuasive.
23 THE COURT: What is your response to 1.a.?
24 MR. CRONEN: I don't think he actually responded to
25 the question under a. I'm not sure if Defendant is contending

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15
1 whether or not it's a license or a cross-license, from that

2 response. But I noted that in the trademark office, when that
3 assignment recordation document was filed, a couple of weeks

4 later, Mr. Hevia apparently received a notice from the Trademark
5 Office. This was attached to Document 881, which is Defendant's
6 Evidentiary Objections to the declaration of Cicero.
7 And in there, it's a notice from the trademark office.
8 And it says (As read), "Dear Mr. Hevia, please review all
9 information contained in this notice and let us know if there's
10 an error."
11 And in that notice it says, "This assigns the entire
12 interest and the good will," assigns the entire interest and the
13 good will from our organization to his client. He obviously had

14 an opportunity to correct that, so I don't know how that -- if
15 that's really responsive to your question. He apparently
16 thought at some point it was an assignment of an entire interest
17 or -- I don't know.
18 THE COURT: That's a fair point. Do you maintain that
19 the 1996 agreement is or is not a license or a cross-license?
20 MR. HEVIA: We do not believe that it is either a
21 license or a cross-license.
22 THE COURT: Do you maintain that it is a partial
23 assignment?
24 MR. HEVIA: We maintain that it is, at the very least,

25 a partial assignment of a vested property interest.
16
1 Conceivably, we have, since the date of issuance, been the

2 effective co-owner of that mark.
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3 THE COURT: All right. Do you have anything to say on
4 that particular point?
5 MR. CRONEN: I guess this is going to get to
6 Your Honor's point, in Preliminary Question 1 and a couple of
7 other of these questions. And that is, this agreement is -- is,
8 I believe, hopelessly ambiguous.
9 I have tried mightily to make some sense of it,
10 myself, in my own office. Mr. Zimmerman and I have gone over
11 it, you know. And, I'm not sure. Judge Orrick (Phonetic) used
12 to say "If it walks like a duck and quacks, it's probably a
13 duck."
14 This does have language about usage of names; it
15 doesn't say what names. And usage of marks, I believe, it was
16 also -- that sounds like license language to me.
17 THE COURT: Why don't we go on to Question d,
18 because on what authority do you rely on to support the
19 Plaintiff's contention that it is a license or a cross-license?
20 MR. CRONEN: Essentially just the language of the
21 agreement, itself, where it says "usage of a name," and that
22 generally implies a license arrangement. Certainly not an
23 assignment --
24 THE COURT: Do you have legal authority to that
25 effect?
17
1 MR. CRONEN: Other than the right to freedom of

2 contract, I mean, it's simply a -- a written contract is a
3 license, so that's generally the freedom-of-contract issue.
4 THE COURT: What do you have to say, Counsel, with
5 respect to b, the cross-license issue?
6 MR. HEVIA: We believe that it was in effect a partial
7 assignment. Getting back to the -- or alternatively, that we

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8 were co-owners of the mark from the date that it was issued.
9 Getting back to the case that we submitted,
10 Iskenderian v. Iskenderian, the Court of Iskenderian, quoting
11 McCarthy on trademarks, states (As read), "One method of
12 balancing is to presume that the parties' contractual agreements

13 will prevent confusion of customers. Such a presumption would
14 rest on the assumption that it is in the best self-interest of
15 the parties to avoid fragmentation of their trademark's image.
16 In adopting such a presumption, the Trademark Trial and Appeals
17 Board stated, 'Considering that the joint applicants were
18 trademark registration, here have a strong interest in
19 protecting the validity and integrity of their marks, and
20 presumably would not engage in activity detrimental to the
21 long-established rights therein, that confusion in trade would
22 be inimical to their best interests, and that the agreement

23 reflects the joint effort governing the use of their marks,
24 including a viable effort to avoid confusion.'"
25 One of the stated purposes in the agreement was to
18
1 avoid that very confusion.

2 THE COURT: All right.
3 MR. CRONEN: May I address the Iskenderian case? That
4 case involved --
5 THE COURT: No, I can read the case.
6 MR. CRONEN: That case involved Vartkes and Markrid

7 who started a chicken place, and did well. And they had three
8 children, Mardiros and two daughters. I can't pronounce their
9 names. A tragedy occurred. The son, a daughter and the father
10 were murdered. And there became a probate dispute between the
11 son's wife, the daughter-in-law, and the mother who had started
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12 this restaurant chain with her own garlic sauce and everything
13 else.
14 And the case, the holding of the case is that the
15 person with those rights, the mother, the original rights, kept
16 them. And the outsider, the daughter-in-law, didn't. And the
17 whole notion is, in that case, the mother had transferred her
18 entire -- her entire interest in the restaurant.
19 They did not recite good will specifically being
20 transferred, but she transferred everything, the whole -- like
21 we say in the trademark business, if you -- you know, sell
22 something lock, stock and barrel, you don't need that good will
23 necessary, that -- that incantation language, as you might
24 ordinarily if you are just selling the mark.
25 So here, Vartkes had assigned her entire interest,
19
1 which included the good will. And so that's -- I don't think

2 this case supports his position.
3 THE COURT: I'll give you the last word on this point.
4 MR. HEVIA: Yes, sir. The point is that the federal
5 trademark was registered by the son. And it was in the son's

6 name.
7 MR. CRONEN: It was a state trademark.
8 MR. HEVIA: There was both a state and a federal
9 trademark. The federal trademark was registered in the son's
10 name. The mother, who had never had any involvement with the
11 federal mark, left all of her trademark rights to her two
12 daughters.
13 The Court found that the son had never had exclusive
14 use and ownership of that mark, so that the -- the estates of
15 the two murdered sisters were in effect co-owners of the mark
16 with him.
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17 THE COURT: All right. I want to move on to Question
18 1.c. And I'll start with Plaintiff's Counsel, because this is
19 really where the rubber meets the road.
20 We have cross motions for summary judgment. We've got
21 an agreement that is really the operative or the key agreement

22 in this case. I want to know how you can say -- on what basis
23 you say there are no disputed facts, which disputed facts would
24 preclude summary judgment?
25 MR. CRONEN: In the effect that that agreement is
20
1 still in effect.
2 THE COURT: Correct.
3 MR. CRONEN: At least three. It's ambiguous. That
4 agreement can't be interpreted. There are, for example, in the

5 second Whereas clause, it says "registration of their respective
6 names," but they don't say what the names are.
7 In the grant provision, in Paragraph 1, it says --
8 "License and a revocable right to" (sic) --
9 THE COURT: Slow down.
10 MR. CRONEN: I'm sorry. I did it myself, I'm so
11 sorry. "Irrevocable right to usage of the granting parties'
12 respective names, so long as it's used in conjunction with a
13 trade or service mark as defined under the Lanham Act."
14 I'm not sure -- I don't know what that means. I don't
15 know which name --

16 THE COURT: What is your bottom line? Is your
17 bottom-line position that if the Court finds that this agreement
18 is in effect, would you agree that there are questions of fact
19 on both sides?
20 MR. CRONEN: No, I wouldn't. I think the agreement is
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21 -- there's no question of fact that the agreement is ambiguous.
22 If it is a cross-license, as has been mentioned here and
23 there -- not by us, by the way, I'm not sure exactly what this
24 is -- it extinguished upon the dissolution of the partnership.
25 And if it's a settlement agreement, as Mr. Hevia seems
21
1 to indicate now, where there was this desire to keep separate,

2 then that was breached when the Defendant attempted to assign
3 the registered mark to himself through the trademark office.
4 So it is either ambiguous, it extinguished, or it was

5 breached, materially breached, when the Defendant went ahead and
6 attempted to transfer that registration to himself.
7 THE COURT: So you say, your position is, the
8 Plaintiff's position is it is purely a question of law. There
9 are no facts in --
10 MR. CRONEN: There are no facts with respect to that
11 agreement.
12 THE COURT: Counsel?
13 MR. HEVIA: Before I address that, sir, may I say that
14 the first communication that I received from the Trademark

15 Office was when I got the whole eight-page submission. And
16 actually back in March -- at or about March 21st of 2000. And
17 -- a year later. I did not receive the document that opposing
18 Counsel refers to, and I don't know what he is referring to.
19 THE COURT: All right. But what is your answer to
20 that question?
21 MR. HEVIA: The answer to that question, in the first
22 place, opposing party has not up to now pled ambiguity in any of
23 its filings, so it is precluded from so stating at the summary
24 judgment proceedings.
25 In the second instance, the two challenges that I have

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22
1 made, that it's an assignment in gross, I think we showed very

2 clearly that it was not. I noticed that Your Honor has it in
3 one of the liner questions.

4 The other challenge that they make is that the
5 sublicensing rule applies. We don't believe that it does apply,
6 but we believe that even if it were to apply, because of several
7 factors that I can cover, the trademark would still be in full
8 force and effect, and we do not believe that there is any
9 question as to the full force and effect of that agreement.
10 THE COURT: All right. So what facts do you -- so,
11 implicitly you are agreeing that there are no facts in dispute.
12 Is that correct?

14 THE COURT: All right. All right. I'll give you the
15 last word on this point, if you wish.
16 MR. CRONEN: That's fine. I think I have made my
17 point.
18 THE COURT: All right. I want to go to a pop quiz
19 question for Plaintiff's Counsel. And I'm going to be focusing
20 on the last sentence of Paragraph 2 of the agreement.
21 MR. CRONEN: The last sentence.
22 THE COURT: The last sentence. Get that in front of
23 you.
24 MR. CRONEN: Yes, sir.

25 THE COURT: And the question is, why does the last
23
1 sentence of Paragraph 2 not give the Griffin-Behman Partnership

2 the right to license the Golden Dawn mark to any successors it
Page 19
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3 may have without express permission of H.O.G.D.I.?
4 MR. CRONEN: I'm sorry, I'm not -- I'm having trouble
5 finding a period. Oh, the "notwithstanding"?
6 THE COURT: Yes.
7 MR. CRONEN: From there. And your question, sir? I'm
8 sorry.
9 THE COURT: The question was, why does the last
10 sentence of Paragraph 2 not give the Griffin-Behman partnership
11 the right to license the Golden Dawn mark to any successors that
12 they have without express permission of your client?
13 MR. CRONEN: I don't know. I don't know.

14 THE COURT: All right. Do you have an answer?
15 MR. HEVIA: What provision, sir?
16 THE COURT: The last provision is the last sentence of
17 Paragraph 2.
18 MR. CRONEN: I have one thought, but I don't know --
19 THE COURT: Well, and the question is, why does that
20 sentence, the last paragraph of Paragraph 2, not give the
21 Griffin-Behman Partnership the right to license the Golden Dawn
22 mark to any successors it may have without express permission of
23 H.O.G.D.I.?
24 MR. HEVIA: It gives them the -- it gives both parties
25 permission to license third parties so long as the landmarks of
24
1 the original order are followed.

2 THE COURT: All right. You had another point you
3 wanted to make on that, another thought about it?
4 MR. CRONEN: I'm not sure. I'm not sure why it was
5 not --
6 THE COURT: All right. Now, another question.
7 Paragraph 3 of the agreement. The one that states "Both parties

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8 warrant and represent."
9 Why should Paragraph 3 of the agreement not be
10 interpreted to mean that the Griffin-Behman Partnership had
11 ownership rights in the, quote, "Hermetic Order of the Golden
12 Dawn" name?
13 MR. CRONEN: We're not sure what names and marks are
14 at issue. That's kind of one of the issues here. I don't know
15 what names and marks they're talking about. And that's kind of
16 the problem from the very beginning.
17 Remember, we have a design element in our registered
18 trademark. And they refer to a Golden Dawn mark, a Hermetic
19 Order of the Golden Dawn, and some of these other organizations
20 that are different. And it's just -- I don't know.
21 THE COURT: All right. Do you have a response to
22 that?
23 MR. HEVIA: Yes, Your Honor. We do. The plain
24 language of the agreement, again, save for acknowledging that
25 the other party claims a right therein. As to what marks are
25
1 covered by the agreements, and toward the middle of Paragraph 1,

2 opposing party objects to the use of the RR+AC mark in trade and
3 commerce. They have never used it in trade and commerce.
4 We have limited ourselves to using the seal on our
5 website, and in Mr. Griffin's 1999 book, The Ritual Magic
6 Manual. They objected to its use in trade and commerce.

7 We included a mention there, because we want to
8 preclude them from filing an opposition to it, because they felt
9 that it was inappropriate because of the nature of the RR+AC to
10 use that name in trade and commerce. Again, they objected to
11 its specific use. We only got that there to preclude an
Page 21
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12 opposition.
13 The mark mutuality of the marks in the agreement was
14 the OHIM E.U. "Hermetic Order of the Golden Dawn," and the U.S.
15 "The Hermetic Order of the Golden Dawn."
16 THE COURT: Response?
17 MR. CRONEN: One other point, I think, coming back to
18 what you had asked about, in the last sentence of Paragraph 2,
19 it said "Both parties shall have the right to license and/or
20 warrant other temples without interference or permission of the
21 other party, provided the temples adhere to the landmarks of the
22 original order."
23 But again, it says "license or warrant," and we don't
24 know license what, or warrant what.
25 THE COURT: We have covered that point.
26
1 MR. CRONEN: Okay. Just another ambiguity.

2 THE COURT: Now, another pop quiz question for the
3 Plaintiff.
4 If the Court accepts H.O.G.D.I.'s view that the 1996
5 agreement was effectively terminated by the dissolution of the

6 Griffin-Behman Partnership, does H.O.G.D.I. concede that any
7 rights it may have had to use the partnership's marks under the
8 1996 agreement also cease to exist?
9 MR. CRONEN: I don't know. I'm not sure. But I think
10 so. I think once that partnership extinguished, that basically
11 extinguished that agreement.
12 THE COURT: Do you agree with that?
13 MR. HEVIA: No, sir, I don't.
14 THE COURT: And the reason?
15 MR. HEVIA: Well, opposing party claims that the
16 assignment in gross rule is applicable here. In fact, it is

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17 not. The partnership, apart from its other activities of
18 operating the Confederatio, licensing several temples,
19 lecturing, publishing various materials and the web site, --
20 THE COURT: Slow down, please.
21 MR. HEVIA: -- obtained five trademarks. Obtained or

22 applied five trademarks, as submitted into evidence in the
23 supplemental declaration of David John Griffin.
24 Three of the trademarks were originally applied for
25 and issued in the name of David John Griffin. One was assigned
27
1 indirectly to the name of David John Griffin by a Canadian

2 national. Only the fifth mark was jointly applied by both
3 Mr. Griffin and Ms. Behman.
4 So, all of the five were listed in the agreement, just

5 to reinforce that in selling him the full stock and barrel of
6 the operating partnership, she retained no claim against the
7 trademarks issued only in his name, or the one trademark issued
8 jointly to the partners.
9 THE COURT: All right. Counsel?
10 MR. CRONEN: I think there was just a bit of a
11 confusion with respect to this notion of assignment in gross.
12 The assignment in gross relates to those trademarks, but not the
13 1996 agreement.
14 Ms. Behman never had an ownership interest that she
15 could have transferred to him through a sale of partnership

16 agreement, or anything else. All she ever had was whatever this
17 agreement is -- if it's a license, this's all she had.
18 So, that -- that assignment in gross issue, it may --
19 may or may not apply to those five trademarks, but it certainly
20 does not apply to the 1996 agreement.
Page 23
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21 THE COURT: What is your position on that?
22 MR. HEVIA: We acquired a property interest, or were,
23 alternatively, co-owners in the mark when it was issued. At the
24 time the partnership was owned by David John Griffin and
25 Patricia Behman, they acquired a property interest.
28
1 Neither H.O.G.D.I. nor Charles Cicero have any

2 standing to object to one partner selling full lock, stock and
3 barrel of an operating partnership to the other partner.
4 THE COURT: All right. Let's move on.

5 MR. CRONEN: One last -- he says "lock, stock and
6 barrel" a few times, but there is no evidence of that. We don't
7 have this -- the chicken restaurant or a cheese company or a
8 Gallo salami thing or anything from --
9 THE COURT: I understand. I want to move on, now.
11 THE COURT: Let's go back to the published questions
12 under the Plaintiff's motion for summary judgment. What is your
13 answer to Question No. 3?
14 MR. CRONEN: I believe that we had -- I believe that

15 that agreement extinguished, yes, and that we would have no
16 further rights under that agreement. I -- I believe. I've not
17 figured the answer out with respect to authorities on that yet,
18 but --
19 THE COURT: So you agree that the sublicensing rule
20 would not apply?
21 MR. CRONEN: Oh, I'm sorry. No, I think it -- it
22 wouldn't be called a sublicensing party because -- I'm sorry.
23 If it's a --
24 THE COURT: Let's stop.
25 MR. CRONEN: Yes.

Page 24
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29
1 THE COURT: Because I made a mistake, all right,

2 because I did not give the parties a chance to answer Question
3 No. 2.
4 And it is an important question, regarding considering
5 the motions that were filed on November 19 and 20th, when the
6 Defendant did not seek leave of Court to file these motion under
7 the cited local rule. What is your best argument?
8 MR. HEVIA: We could not have possibly filed those
9 motions until such point as opposing party filed a reply brief
10 which relied in part on a declaration which attempted to
11 introduce into evidence the non-renewal of one mark as evidence
12 of non-usage of another mark.
13 Secondly, it relied in part on a declaration by

14 opposing party's president, Charles Cicero, which stated that he
15 did not license his licensees.
16 Thirdly, based on that declaration, trying to
17 introduce the non-renewal of the RR+AC mark to prove non-usage
18 of the OHIM E.U. Hermetic Order of the Golden Dawn mark,
19 opposing party introduces a theory unsupported in -- anywhere in
20 the Record that David John Griffin did not engage in use of the
21 H.O.G.D. name in trade and commerce prior to 2004.
22 THE COURT: Those may be all very good arguments and
23 reasons, but wasn't the appropriate procedure to make an
24 administrative request to the Court for permission to file such

25 a brief --
30
1 MR. HEVIA: Yes.

2 THE COURT: -- stating that, as opposed to taking it
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3 upon yourself, taking self-help to file such a -- what otherwise
4 would be lay-filed motions?
5 MR. HEVIA: Your Honor is, of course, correct.
6 However, we read 7.3(d) to -- because of its further elaboration
7 on statement of recent decisions, that anything that could not
8 have been replied before would have been covered by that rule.
9 We also felt that if a motion to strike would be
10 precluded from a reply memorandum that is flawed on its face,
11 because of 7.3(d), then the opposing party could basically file
12 anything that they want, and we would be precluded from
13 answering. It was a wrong interpretation.

14 THE COURT: "However," I think everything after the
15 word "However" is not really pertinent. The Court is going to
16 do what it is going to do. But I will tell you that the
17 appropriate procedure in such situation is to do exactly what
18 the rules require, which is you file an application, you state
19 your position that they filed an inappropriate brief, or reply,
20 or a new matter, and then the Court decides whether that is
21 appropriate, and we will decide.
22 But when the parties engage in self-help, there will
23 be nothing to preclude them, the Plaintiff, from then putting in

24 their own -- whatever it's called, surreply or response. And
25 all it does is perpetuate the paperwork the Court has to look
31
1 at. And I'm telling you, in the future, that is not going to be
2 tolerated.
3 I don't need to hear a response from you.
4 MR. CRONEN: I just don't -- one response is that I
5 don't think they could have a good faith belief in complying
6 with the local rule, because none of the materials that they
7 filed in connection with that were new. None of them -- all of

Page 26
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8 those things have existed for some time.
9 THE COURT: I don't really want to hear argument.
10 MR. CRONEN: That's fine.
11 THE COURT: They violated the rules, as far as the
12 Court's concerned, and I wanted to get an explanation.

13 MR. CRONEN: That's not the first time.
14 THE COURT: I don't want to hear that, either, all
15 right?
17 THE COURT: I have now a pop quiz question for the
18 Defendant.
19 The Court understands that Mr. Griffin asserts as
20 defenses to the Plaintiff's infringement claim, H.O.G.D.I.'s
21 infringement claim, that he is entitled to use the mark by way
22 of the 1996 agreement, and because of laches. Griffin does not,

23 however, address H.O.G.D.I.'s arguments on the Sleekcraft --
24 S-L-E-E-K-C-R-A-F-T -- factors.
25 Is Mr. Griffin conceding that but for application of
32
1 these defenses, H.O.G.D.I. would be entitled to judgment on the

2 infringement claims? I.e., is the focus of this case about the
3 defenses to H.O.G.D.I.'s claims?
4 MR. HEVIA: No, Your Honor. We simply mentioned
5 laches, estoppel, and unclean hands way down the list, as a
6 third line of defense. We believe that our use of the mark from
7 1994 onwards has been lawful. Sleekcraft refers to unlawful
8 use.
9 Now, we do believe that our use was lawful. It has
10 been continuous since 1994. So yes, it would be barred by
11 laches.
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13 MR. HEVIA: If the Court were to find it unlawful,
14 which we do not concede and do not believe.
15 THE COURT: Response?
16 MR. CRONEN: That they don't have any position with
17 respect to Sleekcraft, because they fit right into it. They
18 copied the mark, right down to the registration notice.
19 THE COURT: Let me ask you a question now. H.O.G.D.I.
20 contends that the Golden Dawn mark is incontestable, and submits
21 the certificates attesting to that fact, which is dated April of
22 2006.
24 THE COURT: When was the -- when was H.O.G.D.I.'s
25 Section 15 affidavit filed with the U.S. Patent and Trademark
33
1 Office?
2 MR. CRONEN: Approximately around that time.
3 Generally speaking, we filed those between the fifth and sixth
4 year after registration. We did not represent the corporation
5 at that point. They had filed their renewal, and had not filed
6 the incontestability certificate at that time.
7 So, we -- I believe it was -- I don't know, six months
8 before, let's say, within a --
9 THE COURT: Is there any evidence of that in the
10 record?
11 MR. CRONEN: Yeah, I don't know. I don't know if the
12 filing date was in the record or -- I may be able to discern
13 that from the notice, itself.
14 THE COURT: But you concede that the affidavit had to
15 be filed within one year of after the expiration of the
16 five-year usage?
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17 MR. CRONEN: No, the law is that you get the Section
18 15 incontestability after five years of continuous use, and you
19 can file it essentially at any time. You don't have to file
20 between the fifth and sixth years, but you may.
21 You do have to file a Section 8, which is a continued

22 use. So you have to file a Section 8, showing that we are still
23 using this mark, and then incontestability may be filed any time
24 after that date, essentially, as long as you have got five years
25 of continuous use.
34
1 THE COURT: In responding to that question, I want to

2 know what is Mr. Griffin's response to H.O.G.D.I.'s assertion
3 that the Golden Dawn mark has become incontestable, and what
4 impact, if any, does that have on Mr. Griffin's argument that

5 the 1996 agreement permits him to use it? And I'm citing 15
6 U.S. Code, Section 1115.
7 MR. HEVIA: It merely makes the property interest that
8 we acquired at or about November 20th, 1996, equally
9 incontestable.
10 THE COURT: All right. Do you agree with that?
11 MR. CRONEN: No, obviously. They haven't -- it's my
12 client's registration, not theirs.
13 THE COURT: Let's move on. Now we are up to Question
14 No. 3, which is where I started before.
15 If the Court concluded that the '96 agreement is not a

16 license or a cross-license, is it your position that the
17 sub-licensing rule would not apply in this case?
18 MR. CRONEN: Yes, and in a technical sense, but I
19 think that the effect would be the same. Upon the termination
20 of that partnership, that agreement went away. If it's not a
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21 license agreement, it went away, and if it is a license
22 agreement, it went away. Different rules applying in the
23 different situations.
24 THE COURT: Do you agree with that?
25 MR. HEVIA: No, Your Honor, we do not. Though we do
35
1 not believe that it is a license or a cross-license, the Ninth

2 Circuit did not adopt the sub-licensing rule until 2006, with
3 the Glenn Miller case.
4 We also believe that if it did apply, there would have

5 been a breach of contract at or about May 30th, 1998, when the
6 sale of partnership took place. And they would have had four
7 years to attack that. They did not.
8 Your Honor, may I revisit a previous question?
9 THE COURT: Certainly. Which one is it?
10 MR. HEVIA: As to what interest that it is that we
11 acquired, I would like to read a brief quote from -- I can't
12 pronounce it -- Iskenderian.
13 The Court stated (As read), "The law does not prohibit
14 joint ownership of a trademark. Indeed, federal law expressly

15 permits concurrent registrations of mark under certain
16 circumstances, including when the Court has finally determined
17 that one or more person is entitled to use the same or similar
18 mark or marks in commerce." 15 USC, Section 1052(d).
19 The quote is quoting from there -- the Court is
20 quoting from there, in Iskenderian.
21 THE COURT: All right. Would you now respond, do you
22 have anything to say in response to Question No. 3 on the
23 sub-licensing?
24 MR. HEVIA: We do not believe that there was ever a
25 sub -- a license or a cross-license, so the sub-licensing rule

Page 30
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36
1 did not apply. If it did apply, they would have had four years
2 from May 30th, 1998, to challenge the agreement. They did not.
3 We would further say that the Ninth Circuit did not

4 adopt that rule until 2006, with the Glenn Miller case. The
5 Northern District adopted it in 2004, with the first round of
6 the Glenn Miller case.
7 THE COURT: All right. Question No. 4. And just for
8 the parties' -- everybody's information, we are going to take a
9 break after this, because we have been going for about an hour
10 and a half. So after this question, we are going to take a
11 brief recess.
12 What is Plaintiff's answer to Question 4?
13 MR. CRONEN: When I read the question, it seemed to me

14 that a consent-to-use agreement really is a license. And I
15 don't think that there is a distinction -- at least not in my
16 mind, I don't know that -- perhaps like a consent-to-register
17 type of situation, or something like that? I don't know.
18 It seems to me that if there is a consent-to-use
19 agreement, like a license, then Defendant has no rights under
20 that agreement, that it extinguished upon dissolution of the
21 partnership. And we had no indication that this these folks
22 were engaged in that sale at that time.
23 THE COURT: Counsel, anything to say on Question No.
24 4?
25 MR. HEVIA: We do not believe, again, that there's a
37
1 license or a sub-license. The very nature of a license is that

2 the licensor retains certain measure of supervision and control.
Page 31
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3 Neither ourselves over them or them over us retained
4 any supervision or control for the other, but entered into the
5 agreement for the orderly use of the same, similar mark.
6 THE COURT: All right. We will take ten minutes now,
7 and then move on to Question No. 5.
8 MR. HEVIA: Your Honor, on the filings and the
9 secondary smoke?
10 THE COURT: I'm sorry?
11 MR. CRONEN: I'm sorry, Your Honor.
12 THE COURT: Yes?
13 MR. HEVIA: I was just asking about the filings and

14 the secondary smoke.
15 THE COURT: Yes.
16 MR. HEVIA: Unfortunately, my office sits under a
17 three-inch cloud of smoke.
18 THE COURT: Well, then, if you are telling me that it
19 is impossible to avoid that problem, then I'm going to issue an
20 order, and I am suspending the requirement for both sides --
21 because I think it's fair -- that there be chambers copies.
22 It is unfortunate, but it's -- again, this Court won't
23 interfere with anybody's right to smoke or do anything else

24 that's legal. But when it gets to the issue of secondary smoke,
25 it's just a matter that the Court is not able to deal with those
38
1 papers.
2 So therefore, in light of what you just said, if that
3 is your final answer, then neither party -- then the Court is
4 suspending the obligation of filing chambers copies.
5 MR. HEVIA: Thank you, Your Honor. I would, if I
6 could, comply.

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8 MR. HEVIA: Sorry.
9 THE COURT: Ten minutes.
10 (Recess from 10:28 to 10:47 a.m.)
11 THE COURT: Okay, we are back on the Record, and up to
12 Question No. 5, which is addressed to Plaintiff.

13 MR. CRONEN: And on No. 5, I believe it's a somewhat
14 similar type of question to 1.c., and that would be the
15 ambiguity of it. If it was a settlement agreement or a right to
16 use, then it was breached when Mr. Griffin attempted to assign
17 the entire interest and good will of the mark to himself.
18 And that further defense that was pled is unclean
19 hands, and it's really kind of -- if Mr. Griffin is going to
20 assert that agreement, and then kind of be contending that it's
21 a right of usage as opposed to a license, that he had no
22 license, and it's clearly not an assignment, then he had

23 absolutely no right to assign the entire interest and good will
24 to himself, and shouldn't be allowed to enforce that agreement
25 for just unequitable considerations.
39

2 MR. HEVIA: We never tried to assign the entire
3 interest. The document to which Cronen refers, I do not know.
4 Our entire submission to the PTO consisted of eight
5 pages, which included a copy of the agreement, and very
6 carefully stated that we were assigning that partial interest

7 which devolved upon ourselves upon execution.
8 Your Honor?
9 THE COURT: Yes.
10 MR. HEVIA: Before we go on, may I say two very brief
11 things on previous points?
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12 THE COURT: Very brief. Tell me which points.
13 MR. HEVIA: As to the matter of the nature of the
14 agreement, and as to the transfer of good will from Behman to
15 Griffin.
16 THE COURT: Fine.
17 MR. HEVIA: On the nature of the agreement, I would
18 point out that apart from Paragraph 2, which permits both
19 parties to record a copy of the agreement with the PTO, this
20 certainly -- a proof that each party acquired a property
21 interest in the mark of the other.
22 As to the partnership sale, I would point out that

23 fully one year after the sale of the partnership, when
24 Mr. Griffin's 1999 book appeared, Ms. Behman wrote the
25 introduction, which is submitted into evidence as Exhibit 5 in
40
1 the Declaration of David John Griffin.

2 And -- and I would -- she never -- she never competed
3 with him in the use of the mark, and encouraged him by writing
4 that introduction a year later. And in there, she mentions that
5 because of the esteem that she had for him as a magician, she
6 gifted him the magical tools of the late Dr. Isreal Regardie.
8 MR. CRONEN: Your Honor, Mr. Hevia has a couple of
9 times referred to his not having seen the document related to
10 the entire good will. This, I mentioned to you earlier, was 88.
11 I don't know whether -- Your Honor, I've made copies. Here is
12 one for Mr. Hevia.
13 If I may approach the bench, just to show you -- this
14 was given to --
15 THE COURT: Well, wait. Is this in the current
16 record?
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17 MR. CRONEN: This is in the current record, yes.
18 THE COURT: What is the citation to the record?
19 MR. CRONEN: It is --
20 THE COURT: I believe I have seen this document or a
21 document like it, in going over the record. What is the

22 citation?
23 For the Record, it is on USPTO --
24 MR. CRONEN: Letterhead.
25 THE COURT: And it's dated March 15, 2004, addressed
41
1 to Mr. Hevia.
3 MR. CRONEN: That was -- that was a month after -- you
4 just want the cite right now?

5 THE COURT: Yes.
6 MR. CRONEN: That is Document 88-1, Defendant
7 Counter-Claimant's Evidentiary Objections to the Declaration of
8 Charles Cicero.
9 Now, that may also be elsewhere in the record. I just
10 came across that this morning. And it struck me, when Mr. Hevia
11 was saying he had no notice of it and didn't know it, they had
12 effected that recordation back in March of '03, and then he
13 received this notice here.
14 Obviously, he received it, because he submitted it.
15 It's dated, I'm sorry, February of '04. They submitted the

16 recordation. March 15th, this notice gets issued. And it says
17 please review all the information -- to Mr. Hevia -- in this
18 notice. If you find any errors, please give us a call.
19 And it says down here, briefly, and it says "ASSIGNS
20 THE ENTIRE INTEREST AND GOOD WILL" of the H.O.G.D.I. to David
Page 35
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21 Griffin.
23 MR. HEVIA: Your Honor, we submitted our recordation
24 to the USPTO on or about February 20th, 2003. Thirteen months
25 later, we did indeed receive this notice.
42
1 THE COURT: All right. Let's move on.

2 MR. HEVIA: Thirteen months after our original --
3 THE COURT: I can review this document further, but we
4 are here to answer my questions, and I don't have a question

5 about that. So let's move on to --
6 MR. CRONEN: I'm sorry.
7 THE COURT: I believe Question No. 6 we have already
8 covered. Do you have a different -- do you agree that --
9 MR. CRONEN: I agree that we have covered that, yes,
10 sir.
11 THE COURT: Then let's move on to Question No. 7.
12 MR. CRONEN: Do you want me to --
13 THE COURT: It is addressed to Plaintiff.
14 MR. CRONEN: Yes. This dealt with that notion of the

15 exception, because the law, the black-letter law that I have
16 been advising clients for about 20 years now, is that you can't
17 have an assignment without the good will. That's verboten. You
18 will not be allowed to do that.
19 The cases, though, have a couple of exceptions they
20 have come up with, and mostly based around this notion of
21 continuity, where there is no likely --
22 THE COURT: Wait, let's first answer the question.
23 The question, after the Court's preamble, is, what evidence is
24 in the record to demonstrate that Griffin did not receive the
25 good will of the partnership?

Page 36
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43
1 MR. CRONEN: The agreement itself, obviously, is

2 absent of any good will. There's no evidence in the record that
3 there was any continuity of one -- again, I've not seen anything
4 that indicates that there was any commercial activity going on,
5 on the part of this Defendant, any time prior to about two
6 thousand and -- I forget the date, -three or -four. So, there
7 really wasn't any good will in the notion of commercial activity
8 to transfer.
9 In terms of the lock, stock and barrel that Mr. Hevia
10 has said was transferred, there's no evidence of that. We don't
11 see an adding machine or a postage machine or anything like that
12 being transferred. There was simply a naked assignment of
13 trademark rights, and a dissolution of partnership.

14 THE COURT: All right. I want you to stick in
15 responding, Mr. Hevia, to the answer. Is there any evidence in
16 the record to demonstrate one way or the other, as to whether
17 Mr. Griffin received the good will of the partnership?
18 MR. HEVIA: Yes, sir. The continuity as evidenced by
19 the publication of the book, the continued operation of the
20 website, the continued lecturing and publication of articles by
21 Mr. Griffin.
22 There is ample evidence submitted in the record,
23 either in the declaration of David John Griffin or in the
24 supplemental declaration, that he continued the activities of

25 the partnership throughout, continuously.
44
1 THE COURT: Why isn't that evidence of the transfer of

2 good will?
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3 MR. CRONEN: Well, for one thing, the publication of
4 that book does not bear that mark. It was by Golden Dawn
5 Publishing or something else. So, that's not relevant.
6 A website is not a commercial activity if you are just
7 displaying information on it, and they're not selling anything.
8 We have some indication that a few folks sent him some checks; I
9 guess they filled out a form. We don't even know they sent him
10 a check. We don't know. We know they filled out a form. They
11 may just have filled that out in confusion, believing it was my
12 client.
13 I mean, I don't -- there's no evidence of any

14 commercial activity that would indicate any good will in the
15 notion of a business context.
16 THE COURT: Mr. Hevia?
17 MR. HEVIA: Your Honor, opposing Counsel mentions in a
18 footnote in his latest letter of submission --
19 MR. CRONEN: Oh, I'm sorry.
20 THE COURT: Don't interrupt, please.
21 MR. CRONEN: I'm sorry. Please.
22 MR. HEVIA: Opposing Counsel mentions in a footnote
23 that those names are just indication that people were confused,
24 and thought they were joining their organization. I would note
25 that of the three people mentioned, Ralph Fytton -- and this is
45
1 reflected in Exhibit 12 to the Declaration of David John

2 Griffin -- was sued in 1999 by Charles Cicero and Maria
3 Babwasingh, H.O.G.D.I., et al, in the Southern District of
4 New York. So he knew very well what organization he was
5 joining.
6 The other two people mentioned in the States, Mark
7 Griggs joined our organization, was initiated in the Atlanta

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8 Temple in September of 2002, and he was, six months later,
9 recruited by Mr. Cicero for his organization, and licensed as
10 The Hermetic Sanctuary of Ma'at.
12 MR. HEVIA: And the third person, I forget her name,

13 Lorette, was the administrative assistant to Mr. Griggs.
15 MR. CRONEN: One thing that is critically important
16 with respect to No. 7, and I want to be so clear about that, is
17 that that would relate to those five trademarks, we'd be looking
18 for continuity or something like that.
19 It does not relate to that '96 agreement. If it was a
20 license, she can't transfer any good will. That is my client's
21 good will. She can't transfer my client's good will.
22 THE COURT: I want to move on. I have what I need on

23 that question.
25 THE COURT: Question No. 8 has to do with the -- if
46
1 the -- if the Court grants your motion on the trademark claim,

2 which of the other causes of action would remain to be resolved
3 at the trial?
4 MR. CRONEN: There would be no further causes of
5 action to remain at trial. The simple injunctive relief would
6 be sufficient to resolve the dispute.

7 THE COURT: All right. Do you agree with that? And
8 we're not talking about the counter-claim now.
9 MR. HEVIA: Exactly.
10 THE COURT: Only the complaint. I assume you agree?
11 MR. HEVIA: Yes, we do agree.
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13 MR. CRONEN: I do anticipate motions for costs and
14 attorneys' fees potentially, at the end, but --
15 THE COURT: No, I understand that.
17 THE COURT: This is the question -- before we get into
18 the "Are there any other issues," I have a pop quiz question for
19 the Plaintiff, which is as follows:
20 Section B of H.O.G.D.I.'s reply brief addresses
21 matters raised in Mr. Griffin's reply in support of his motion
22 for summary judgment. Why should the Court not grant Griffin's
23 motion to strike the reply as to this aspect of H.O.G.D.I.'s
24 reply brief as an improper surreply filed by leave of the Court?
25 MR. CRONEN: I'm sorry, I'm just not --
47
1 THE COURT: Section B of your reply brief --

2 MR. CRONEN: Yes. That's dealing with the license?
3 THE COURT: Correct.
4 MR. CRONEN: Yes.
5 THE COURT: -- addressed what the Court views as a

6 renegade filing by the Defendants. Why shouldn't the Court
7 strike your response to that? Because you filed -- you didn't
8 get permission from the Court --
9 MR. CRONEN: I believe you did give me permission to
10 file an opposition to that, on a date certain. I believe you
11 did. I wouldn't have done that, I don't think.
12 THE COURT: You are saying that you requested and
13 received --
14 MR. CRONEN: I believe, as part of your order,
15 Your Honor, there was a provision that I respond by a date
16 certain, because I remember I had like three days or something.

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17 I think it was the 20 -- I would be talking out of school at
18 this point. I believe I had a right to --
19 THE COURT: Did the Court grant that permission?
20 MR. HEVIA: Not to my knowledge, Your Honor.
21 THE COURT: Well, so many papers -- that's what

22 happens when you all file all these ancillary motions. It's
23 even difficult for the Court to keep track. But I will
24 certainly check on that. But --
25 MR. CRONEN: I can check for you, or however you wish
48
1 to proceed.
2 THE COURT: No, I'll check on it. But what's good for
3 the goose is good for the gander.

5 THE COURT: Next question for the Plaintiff, with
6 respect to Mr. Griffin's laches defense that we have discussed
7 earlier, H.O.G.D.I. argue that Griffin submits no evidence of
8 the use of the Golden Dawn mark in commerce before 2004.
9 How does H.O.G.D.I. respond to Exhibits 4 and 5, and
10 Griffin's contention that he had been using the website
11 www.golden-dawn.com since 1997?
12 MR. CRONEN: I don't know what was on that website
13 since 1997. I know that the agreement was in effect at that
14 time, so that if it was a cross-license, I guess that would have
15 been okay. I don't know what that was.

16 But, in terms of those exhibits, they don't show -- I
17 mean, it shows that somebody filled out a form, and that came --
18 I believe the earliest of those was 2002.
19 And, the other deal is a manifesto, it is an article
20 that appeared in some magazine. That's not a commercial use.
Page 41
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21 And that was in conjunction with that Ordo Roseae mark, the
22 other -- the now expired registration. You see them both up
23 there.
24 And that was Ms. Monastre's article with Mr. Griffin,
25 so she was, you know, operating at that time as -- under the
49
1 partnership, I presume.
2 THE COURT: Mr. Hevia?
3 MR. HEVIA: Our position is that we have continually
4 used the mark in commerce since 1994, and we have substantiated

5 it with the evidence on the Record.
6 THE COURT: All right. Let's move on now to the
7 Defendant's motion for summary judgment, and Question No. 1.
8 MR. HEVIA: When we filed our motion on the 3rd of
9 October before opposing party filed the cross motion, we moved
10 to dismiss Plaintiff's top count, and to grant our breach of
11 contract.
12 Our reading of the applicable local rule and Rule 56
13 of the Federal Rules is that if you were to grant our motion to
14 deny the top count, it would not be presented at trial in

15 February. We may be incorrect, but that is why we filed the
16 motion that way.
17 THE COURT: All right. So, in other words, so you
18 think the effect of what you filed would be to require the Court
19 to --
20 MR. HEVIA: If both were granted.
21 THE COURT: If both were granted. What's your
22 position on that?
23 MR. CRONEN: I'm sorry. I was looking at something
24 else, Your Honor.
25 THE COURT: Well, the question is -- the question had

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50
1 to do with whether the Defendant moved for summary judgment

2 solely on his claim for breach of contract, and not on the
3 remaining cause of action.

4 Mr. Hevia just said that although they didn't
5 specifically move -- they only moved on what he called the top
6 count, the breach of contract, that the effect of a ruling for
7 the Defendants would be to preclude any further activity. And
8 you, I think you just agreed with that.
9 MR. CRONEN: I'm in agreement, yes, sir.
10 THE COURT: All right. Question No. 2, 2.a., what is
11 Plaintiff's response to Defendant's argument that he is entitled
12 to judgment on the breach of contract claim?
13 MR. CRONEN: Well, we discussed some of the issues

14 with respect to ambiguity. And again, this is where it gets a
15 little confusing.
16 Griffin alleged that H.O.G.D.I. breached the 1996
17 agreement by misappropriating the name "Hermetic Order of the
18 Golden Dawn." It's difficult for me to conceive how my client
19 could have breached the contract by using his own name. He
20 can't misappropriate his own mark, or it can't appropriate its
21 own mark. He, the Defendant, misappropriated it.
22 The contract is, again, ambiguous. There is the issue
23 of the unclean hands with respect to that agreement, in view of
24 the attempt to assign all of their entire right, title and

25 interest in that mark to the Defendant.
51
1 And I guess that would be the summary of our

2 positions, Your Honor.
Page 43
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3 THE COURT: All right. Response?
4 MR. HEVIA: They executed the agreement as H.O.G.D.I..
5 We executed it as H.O.G.D.. We have always been very careful to
6 differentiate ourselves, and to make it very clear that we are
7 not affiliated with the Florida corporation or H.O.G.D.I..
8 We believe that they breached their contract by
9 appropriating our name. We also believe that they breached it
10 for a series of other reasons: Trying to implicitly repudiate
11 the contract on or about April 23rd, 2003; trying to once again
12 implicitly repudiate the contract on or about November 5th,
13 2004. A total disregard of the landmarks provision of the

14 agreement, which was there for an orderly control of the
15 issuance of license to third parties.
17 MR. CRONEN: I pretty much said all I have to say on
18 that point, Your Honor.
19 THE COURT: All right. Question b. with respect to
20 Mr. Griffin's damages.
21 MR. HEVIA: As to the evidence now on the Record?
22 THE COURT: Yes.
23 MR. HEVIA: Their solicitation asked for the so-called

24 Golden Dawn Legal Defense Fund [Cicero], which accuses
25 Mr. Griffin and myself of fraud, and implies that we have no
52
1 right to use the H.O.G.D. name, the trademark, that's submitted

2 into the record as Exhibit 20, Declaration of David John
3 Griffin, dated October 3rd.
4 There is also their trademark page submitted as, I
5 believe, Exhibit 6 or 7, which implies that they are the sole
6 licensing authority to the H.O.G.D. mark, and which notes that
7 it has licensed Esoteric Order of the Golden Dawn, the Sanctuary

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8 of Ma'at, Golden Dawn, Open Source Golden Dawn, the Sodalitas,
9 et cetera, and others, and states that it has licensed them
10 without any supervision or control.
11 Apart from what is on the record, Your Honor, and I
12 didn't expect to prove up damages today, I have 50 or 60

13 exhibits in which their licensees in Italy, Germany, Sweden, and
14 a variety of countries --
15 THE COURT: I'm not interested in that here --
16 MR. HEVIA: -- attack us while using our European
17 mark.
18 THE COURT: All right. Response?
19 MR. CRONEN: That is another problem with the papers.
20 They are filled with things going on in Europe and Sweden. And
21 I don't think that is really what we are focusing on here. I
22 don't see any damages in any of that.

23 THE COURT: All right. Let's go to Question No. 3.
24 And, and this goes to Defendant, Mr. Griffin.
25 Given when the applicable discovery requests were
53
1 submitted, how can the Court deem H.O.G.D.I. to have admitted

2 the -- admitted the requested facts, given when the request was
3 filed?
4 MR. HEVIA: Our reading of Rule 36 is that it is
5 self-executing in its nature. It does not require a motion to
6 compel for an item to be deemed admitted.

7 If it is not specifically refuted with particularity
8 within 30 days, it should be deemed admitted.
9 THE COURT: But the rule is quite clear, that
10 discovery closes on the day that the response was due. In other
11 words, you have to -- you have to -- you have to serve your
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120106GoldenDawn
12 discovery requests such that there's enough time for the
13 responding party to respond to the request before the date set.
14 Obviously, the request that you are attempting to
15 require deemed admissions were filed in such a way as to be
16 construed as being filed after the close of discovery. I don't
17 understand how that -- that is not an ambiguous rule.
18 MR. HEVIA: The only case that I've found on point is
19 a Seventh Circuit case. I don't know the cite, offhand. It's
20 in my papers.
21 It does not reach the question as to whether a request
22 for admission is a discovery item. It -- it does say that it

23 does seem to be self-executing, just by its very nature.
24 So, I cannot point on a procedural issue of that type
25 to a published case. However, it is our position that it is
54
1 self-executing. And we also --

2 THE COURT: Yes?
3 MR. HEVIA: We also do notice that the Court, in their
4 order dated October 11th, 2005, stated that both parties have a
5 duty to voluntarily comply with discovery under Rule 26.

6 I note that I have complied, but I have never received
7 a discovery request. We have received no discovery from --
8 THE COURT: Well, that is referring to the voluntary
9 disclosure under Rule 26, which is different than what we are
10 talking about here. I believe that --
11 MR. HEVIA: I understand.
12 THE COURT: -- a clear reading of this rule, which has
13 always been the rule in this district, so as to avoid having
14 discovery continue well beyond the closure date with the
15 response and then a motion to compel, must be -- that is why
16 discovery cutoff is defined as the date by which all response to

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120106GoldenDawn
17 written discovery are due.
18 So, I don't agree. I'll look at this further, but I
19 don't agree with your characterization.
20 Anything you want to say on this?
21 MR. CRONEN: Just for the sake of accuracy, this is

22 precisely what I wrote in a response that I did file, within 30
23 days after receiving the request, pointing this out, that they
24 had failed to comply. They didn't ask, come back and ask for an
25 extension of time or anything that they are supposed to do under
55
1 the local rules.

2 And then I objected in general to the various
3 requests, thinking that if it ever came up again, I would have
4 an opportunity to actually respond to those requests.

5 THE COURT: All right. Let me move on. Does the
6 Plaintiff move to strike the declaration in its entirety?
7 MR. CRONEN: Well, no. I -- in that motion, we moved
8 to strike Paragraphs 5, 11, 12, 16, 17, 19, and 22, on hearsay
9 grounds, lack of personal knowledge grounds, and all of that.
10 Much of the rest of that declaration is filled with a
11 lot of irrelevant information, and we pointed out in general, I
12 didn't want to waste a lot of the Court's time, but that
13 material can certainly be stricken from the Record.
14 THE COURT: Well, I understand your position, you
15 don't need to respond because you filed a response. I'm going

16 to rule on those objections in the course of issuing the order
17 on these motions. All right.
18 With respect -- so, those are the -- all the
19 substantive questions. Are there any other issues that the
20 parties have a burning need to -- a desire to cover which were
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21 not discussed in the papers, or in response to the Court's
22 questions?
23 MR. CRONEN: I will stand pat, and not bring up the
24 material that we discussed at the beginning of this hearing.
25 That was one of the matters I was going to reserve for the end
56
1 here, but --
2 THE COURT: All right. Anything further you want to
3 say?
4 MR. HEVIA: Your Honor, the only thing I would add is

5 that while we do apologize for the tone, we do believe that
6 every statement that we made was substantively and substantially
7 correct.
8 THE COURT: That may very well be, but again, as I
9 told you, that is for the Court to determine.
10 MR. HEVIA: Yes, sir.
11 THE COURT: And I'm not going to indulge any argument
12 on that. I stated what's going to govern this case, what I
13 thought had governed this case, and it's going to be strictly
14 enforced.
15 MR. CRONEN: Thank you, Your Honor.
16 THE COURT: Put another way, the rules that I've
17 imposed are for the protection and for the benefit of your
18 client and you, and the integrity of the process. They are not
19 flexible, nor am I.
21 THE COURT: You need to figure out what movie that
22 comes from, because that's a quote from a movie.
23 MR. HEVIA: Thank you, Your Honor.
24 THE COURT: Let's move on -- just to put a little bit
25 of levity in here. Very little bit, I should add.

Page 48
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57
1 I want to talk about the upcoming deadlines here,

2 because given the -- what's surrounded the -- the efforts
3 surrounding these motions, they may have gotten lost in the

4 smoke here.
5 There's currently a pretrial conference set for
6 January 8th. Again, obviously awaiting the outcome of these
7 cross motions. Pretrial on January 8, and trial on January 29
8 of '07. So it is coming right up.
9 MR. CRONEN: Do you have any --
10 THE COURT: Let me finish.
11 MR. CRONEN: Sorry. Please.
12 THE COURT: The parties are obviously -- the Court
13 changed its pretrial order with respect to pretrial filings.

14 So, I will allow the parties, since I don't believe in ex post
15 facto, to operate under the existing guidelines as they existed
16 when the Court set those dates.
17 Generally speaking, the pretrial submissions would be
18 due to the Court on January 2nd. I would like to prevail on the
19 parties to submit their pretrial filings, given the Court's
20 schedule, by December 29th at noon, which would give the Court
21 adequate time to prepare for the pretrial.
22 Is that acceptable to the Plaintiff?
23 MR. CRONEN: I suppose it is. I was hoping we might
24 put a little of this off while the dispositive motions are

25 pending.
58
1 THE COURT: Well, I prefer not to.

2 MR. CRONEN: I understand, Your Honor.
Page 49
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3 THE COURT: The tentative is what the tentative is.
4 And I have to say, broadly, again, I want to -- first of all, I
5 think I'm going to direct the parties to order a transcript of
6 these proceedings.
7 I want the Record to have been in the parties' hands
8 about what the Court has ordered, so I'm going to order the
9 parties to jointly share in a transcript of these proceedings.
10 But my general view at this point is probably that the
11 motions will be denied. Again, that could change, but I only
12 say that as an operating assumption for the purposes of these
13 dates.
14 MR. CRONEN: I understand.
15 THE COURT: Because I don't -- I would rather not
16 vacate the trial date. So, noon on the 29th of December. Is
17 that --
18 MR. HEVIA: That's fine, Your Honor.
19 THE COURT: All right. It is going to require you
20 folks to meet and confer in good faith, because the next sort of
21 test of compliance with the Court's rule and the new spirit of
22 cooperation among the parties is going to be that the
23 substantial meeting and conferring that was required by the

24 existing rule that you are operating under, to come up with
25 filings and squeeze any of the disputes out of this case where
59
1 it can be done on an expedited basis, so that we don't waste any

2 jury time with pretrial matters.
3 I take the pretrial process very seriously. I spend a
4 lot of time. Basically, based upon your meeting and conferring
5 and presentation of the issues, I will rule on it at pretrial,
6 and that's going to govern what happens at the trial here.
7 MR. CRONEN: Your Honor, I'm glad you are emphasizing

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8 that nature of cooperation. Because if you recall, we were
9 ordered by Your Honor to the Attorneys' Lounge to handwrite a
10 scheduling order, because we didn't get cooperation.
11 THE COURT: Well --
12 MR. HEVIA: Your Honor, we did cooperate with --

13 THE COURT: I don't want to hear that. Again, I don't
14 want to get into a who-struck-John here. But I am just telling
15 you that I expect the two of you, as officers of the Court --
16 you are in Federal Court now. And as one judge has said, you're
17 running with the big dogs here. We're not in state court.
18 And I expect literal compliance, because we are going
19 to have a jury trial here, and you will see when we get into the
20 pretrial that I don't take any time out of the jury's schedule
21 to have any bickering, and I don't like to have multiple
22 versions of a pretrial. So, you can maintain positions that you

23 have that still need to be resolved by the Court.
24 By definition, you will, with respect to the motions
25 in limine the Court allows to be filed in some other matters,
60
1 but you will see in the Court's rules that with respect to
2 exhibits, the Court -- deposition excerpts, the Court does not
3 want to take time to rule on what I call ticky-tack objections
4 on authenticity if there's no real dispute, you know, best
5 evidence rule, Queen Caroline's Rule, any rule.
6 MR. CRONEN: I understand.

7 THE COURT: Whether they go back to antiquity or they
8 are current rules. I don't want to have -- I want, if there is
9 going to be argument, it is going to be on substantive matters.
10 So the parties must meet and confer, and at that point
11 if there is not meeting and conferring, I will determine who is
Page 51
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12 at fault, and I will issue an appropriate order. So, I'm not
13 going to pre-judge you.
14 We are starting a new era here of cooperation in this
15 case, if the case survives these motions, and I expect you to
16 come up with a result that maintains the positions of your
17 clients, understanding you're now going to be at trial, not the
18 time to fight out the last argument.
19 Yes, Mr. Hevia?
20 MR. HEVIA: A small administrative matter. We will
21 move to appear telephonically on January 8th, because we have to
22 come all the way from various points.

23 THE COURT: Is that for the pretrial?
24 MR. HEVIA: For the pretrial.
25 THE COURT: No, that will be denied. They'd have to
61
1 get local counsel.

3 THE COURT: We will figuratively sit down and roll up
4 our sleeves, and I need you here, and I want the parties here
5 for that as well, because that's an important proceeding.

7 THE COURT: The other thing I should tell you is that
8 there is another case that the Court has, it is an older case
9 than this one. It's approximately a one-week trial that starts
10 before your case. So you should be prepared to start on January
11 29th with the actual trial, unless that case settles. And it's
12 -- in light of the pretrial in that case, it's pretty unlikely
13 that that case is going to settle, but hope springs eternal.
14 MR. HEVIA: Okay.
15 THE COURT: So, yes?
16 MR. HEVIA: My client just signaled to me that on

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17 January 8th, he is going to be working.
18 THE COURT: Well, he can be available by telephone.
19 MR. HEVIA: All right, sir.
20 THE COURT: If that's okay. But you need to be here.

22 THE DEFENDANT: Not January 8th, the trial date.
23 MR. HEVIA: He is saying that on the trial date, he's
24 going to be --
25 THE COURT: On the 29th?
62
1 MR. HEVIA: Yes, on the 29th.

2 MR. CRONEN: We have known about this for --
3 THE COURT: Well, no. He doesn't have to -- this is a
4 civil case, it's not a criminal case. The trial is going to go

5 forward.
6 MR. HEVIA: Yes.
7 THE COURT: If he's not here, he's not here. But he
8 should coordinate. Per my rules, if the Plaintiff is going to
9 call Mr. Griffin as an adverse witness, everybody should
10 coordinate with each other's schedules.
11 MR. HEVIA: Yes.
12 THE COURT: But a party is not required to be present
13 at trial, and the jury will be advised only that parties have a
14 right to be there when they can be there. They have lives
15 outside trial.
16 And nobody is going to get any benefit from that, but
17 I'm not going to put off the trial because of the scheduling,
18 because of his scheduling.
19 MR. HEVIA: I understand.
20 THE COURT: The two other things I want to raise,
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21 which is, now that we have turned a new leaf in terms of the
22 presets of the Hermetic Order, whoever owns the rights of good
23 will, what is the prospect for -- I know you have had
24 discussions, settlement discussions, about a further settlement
25 conference in this case.
63
1 Let me start with Plaintiff's Counsel.

2 MR. CRONEN: We went through mediation, and efforts
3 were made at that time to come up with something reasonable, and
4 they failed. And I don't think there's a reasonable chance of

5 settling this case, because of some of the things that have gone
6 on.
7 THE COURT: All right. What is the Defendant's view?
8 MR. HEVIA: Exactly the same thing that Mr. Cronen has
9 said, but from our perspective.
10 THE COURT: All right. Be prepared. It's quite
11 possible and it's been my practice in the past, after the
12 pretrial, to send the parties out to a Magistrate Judge.
13 Because what I find is when the parties are sort of on
14 the, you know, the war footing of just before trial, they've
15 heard what instructions the Court is going to give, because I
16 will rule on instructions as much as possible at the pretrial,
17 the in limine motions and et cetera, the parties are then in the
18 best position to, before they actually step into trial, to
19 settle. And cases more contentious than this have settled at
20 that point.
21 MR. CRONEN: Sure.
22 THE COURT: And the last point I want to ask about is
23 whether the parties, given the amount of time that it is likely
24 to continue to take, after the order is issued in this case,
25 assuming just for argument's sake that both motions were denied,
Page 54
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64
1 whether the parties would agree to consent to having this case

2 heard by one of our excellent Magistrate Judges, who have a lot
3 more time.
4 MR. CRONEN: No, Your Honor, we would prefer the
5 Court.
6 THE COURT: All right, fine. Then I don't need to ask
7 you, because it doesn't really -- it's irrelevant at that point.
8 I'm not going to pressure anybody.
9 All right. Ms. Ottolini, is there anything that you
10 wanted to --
11 MR. HEVIA: No, Your Honor.
12 THE COURT: Counsel?
13 MR. CRONEN: No, thank Your Honor.

14 THE COURT: All right, thank you. And again, Counsel,
15 the Court does not relish taking the parties and Counsel to task
16 as I did at the beginning of this hearing. Believe me, I don't.
17 I don't have the time for it, and I don't, frankly, have the
18 judicial stomach for it.
19 But I will take the necessary steps, if I have to, to
20 control my calendar. And I've spent too much time on a lot of
21 this static, and I don't intend to do it any more. And I expect
22 the lawyers to step up, and in cooperation with their clients,
23 both of whom -- all of whom are intelligent people, and conduct
24 this case on a more dignified basis, and keeping your opinions

25 to yourself.
65
1 And that is going to rein -- you know, I will allow

2 and expect a vigorous trial practice here, but I'm not going to
Page 55
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3 allow inappropriate conduct before a jury. That will not be
4 allowed to take place, and the consequences will be very severe.
5 All right, gentleman, thank you very much.
7 MR. HEVIA: Thank you, sir.
8 (Conclusion of Proceedings)
9
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66
1
2
3 CERTIFICATE OF REPORTER
4 I, BELLE BALL, Official Reporter for the United States
5 Court, Northern District of California, hereby certify that the
6 foregoing proceedings in Case No. C-05-432 JSW, The Hermetic
7 Order of the Golden Dawn v. David Griffin, were reported by me,

Page 56
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8 a certified shorthand reporter, and were thereafter transcribed
9 under my direction into typewriting; that the foregoing is a
10 true record of said proceedings as bound by me at the time of
11 filing.
12 The validity of the reporter's certification of

13 said transcript may be void upon disassembly and/or removal
14 from the court file.
15
16 ________________________________________
17 Belle Ball, CSR 8785, RMR, CRR
18 Wednesday, December 13, 2006
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=
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Case 3:05-cv-00432-JSW Document 202-2 Filed 05/19/2008 Page 1 of 57

UNITED STATES DISTRICT COURT

THE HERMETIC ORDER OF THE )

For Defendant: Law Offices of Jorge Hevia

Reported By: BELLE BALL, CSR, RMR, CRR

1 FRIDAY, DECEMBER 1, 2006

13 MR. HEVIA: Yes.

1 MR. HEVIA: Thank you, sir.

7 I want to say to Counsel, what people do on their own

12 aroma of cigarette smoke, and we find it an aroma difficult to

22 THE COURT: All right. Okay. The second order of

1 of default and denying as moot the motion for entry of default

6 and refrain from including attacks on one another and their

22 In addition, I understand from the nature of this case

1 is a desire by clients to say things about their opponent and

5 engage in such attacks, it demeans their position. And it also

16 effective and zealous advocacy on behalf of your clients to do

21 this instance is the following. By one week from today,

1 today I want each side to file a new version of their respective

4 characterizations of the opponents, the opponent's arguments,

15 respective clients participated in the process and approved the

1 committing felonies before this Court. That is pretty

14 sanctions of like kind.

1 MR. CRONEN: Your Honor, if I may make one comment,

13 to strike, will be the ultimate remedy.

24 and my -- my view of this point is to address both parties.

1 knowing -- I've read these papers several times, and it is

13 THE COURT: To get that out of the Record.

23 him "Defendant," sometimes you call him "Defendant and

1 who we were referring to.

7 case for both sides.

1 argue. There's no right to argue on law and motion in a civil

6 answers to real questions. So, please don't use this as an

16 Griffin believes that upon execution of the agreement, he

21 recognized each other as lineal descendants of the original

1 MR. HEVIA: The first recital of the agreement, both

4 recital, the parties recognized that both parties were concerned

15 And that without an agreement, there would be confusion in the

1 challenge the trademark, name mark, registration or usage by the

4 this agreement or a memorandum evidencing its details may be

25 the question under a. I'm not sure if Defendant is contending

1 whether or not it's a license or a cross-license, from that

3 assignment recordation document was filed, a couple of weeks

13 good will from our organization to his client. He obviously had

24 MR. HEVIA: We maintain that it is, at the very least,

1 Conceivably, we have, since the date of issuance, been the

1 MR. CRONEN: Other than the right to freedom of

7 assignment. Getting back to the -- or alternatively, that we

12 balancing is to presume that the parties' contractual agreements

22 be inimical to their best interests, and that the agreement

1 avoid that very confusion.

6 MR. CRONEN: That case involved Vartkes and Markrid

1 which included the good will. And so that's -- I don't think

5 trademark was registered by the son. And it was in the son's

21 an agreement that is really the operative or the key agreement

4 agreement can't be interpreted. There are, for example, in the

15 know which name --

1 to indicate now, where there was this desire to keep separate,

4 So it is either ambiguous, it extinguished, or it was

14 the first communication that I received from the Trademark

25 In the second instance, the two challenges that I have

1 made, that it's an assignment in gross, I think we showed very

3 one of the liner questions.

13 MR. HEVIA: Yes, Your Honor.